My mistake on Virginia's Rule on Confidentiality

Yesterday I posted about In re Hunter, a Virginia disciplinary matter that addressed ethics obligations regarding blog posts. A three-judge panel upheld Hunter’s right to blog about cases without his client’s consent. I wrote that there are different state standards governing confidentiality and that bloggers should not depend on this decision because they may be in states that impose a higher standard on client confidentiality. I ended my post by encouraging states to adopt a rule like that of Minnesota, whichprohibits a lawyer from revealing information related to the representation, but has the following exception, which seems to neatly enable marketing through blogs and other communications: A lawyer may reveal information relating to the representation of a client if “the information is not protected by the attorney-client privilege under applicable law, the client has not requested the information not be held inviolate, and the lawyer reasonably believes the disclosure not be embarrassing or likely detrimental to the client.”

I got that much right, but here’s what I got wrong. I had thought that Virginia was one of the states that prohibit lawyers from revealing “secrets and confidences” and therefore if the information is public knowledge, and no longer a secret, the lawyer may reveal that information. After looking at this case in a little more detail, I realize that Virginia has the same language as Minnesota.

My basic point remains the same – folks should not rely on a decision from one state when the rules of their state are different. But it is important also be clear about the rule at issue here.

Blogs and Client Confidentiality - a tale of two rules

Yesterday, Sharon D. Nelson posted on her blog, Ride the Lightning, about In Re Hunter. Several months ago, Virginia’s disciplinary office brought two charges against a lawyer because of the content of his blog. One charge claimed that the blog was an advertisement and as such the lawyer was in violation for failing to include a disclaimer required by the Virginia Rules. The other charge claimed that the lawyer violated his obligation of confidentiality because he blogged about client’s cases.

The Bar prevailed on both counts. The blog was determined to be an advertisement, and there was no dispute that the lawyer did not include the disclaimer. And, information on the blog was determined to have revealed confidential information. Last week, a three judge panel heard an appeal of both issues. The panel determined that the blog was an advertisement and upheld the disciplinary charge finding the lawyer failed to comply with the advertising rules. However, the panel did not uphold the disciplinary finding that the information violated the client’s confidences. The key to this decision is that the information the lawyer blogged about was publically available information.

So, the question becomes whether a lawyer may blog, or otherwise communicate information in advertising material, about the representation if that information is otherwise publically known or available. Here’s the problem with coming to that conclusion – the states have different standards governing the lawyer’s obligation to maintain information confidential. Virginia and a minority of states have an ethics rule (usually Rule 1.6) that requires a lawyer to maintain “secrets and confidences.” On the other hand, Rule 1.6 of the ABA Model Rules of Professional Conduct and the majority of states that have adopted it require that a lawyer not reveal “information relating to the representation.”

Seemingly, “information relating to the representation” is far broader than “secrets and confidences” in the marketing arena. If information is public knowledge, it is hardly a secret. However, “information relating to the representation” clearly, in my mind, covers information that is publically available. It is the client’s right that the lawyer not reveal information. Under either version of the rule, the client may provide consent for the lawyer to reveal the information. But, that decision rests with the client, and in the Model Rules states, that decision is designed to extend to information that may otherwise be publically known.

So, folks should be cautious about giving weight to the Hunter outcome. It is quite possible, if not likely, the decision would have been different in a Model Rule state.

One more wrinkle to this – Minnesota Rule 1.6 prohibits a lawyer from revealing information related to the representation, but has the following exception, which seems to neatly enable marketing through blogs and other communications: A lawyer may reveal information relating to the representation of a client if “the information is not protected by the attorney-client privilege under applicable law, the client has not requested the information not be held inviolate, and the lawyer reasonably believes the disclosure not be embarrassing or likely detrimental to the client.” Now, that’s a rule the states should get behind.

When is the cost of advertising reasonable?

A recent article in the ABA Journal discusses the use of what it calls "deal-of-the-day" coupons, in other words, the GroupOn model, as a method of client development. The article looks at aspects of three state ethics opinions that all come to the conclusion that with certain precautions the model is acceptable. Since the article was written, a fourth state has come to the opposite conclusion.

The issues examined by the ethics opinions and noted in the article include fee-splitting and misleading communications. However, one of those commenting on this article added another perspectice, which I had not thought of -- that is whether the cost of the "split" is a "reasonable cost."

ABA Model Rule 7.2(b) and its state counterparts prohibit a lawyer from giving anything of value for the recommendation of the lawyer's services. One of the exceptions to this prohibition is the "reaonable costs of advertisements." In other words, a lawyer may pay the "reaonable costs" of advertisements. But here's the problem -- In a system where the lawyer must assume the risk of ROI, how do we measure a reasonable cost.

In the 1990s, the ABA conducted a study of the Yellow Pages. It found that about 20% of lawyers brought in less fees than the cost of their ads and an additional 10% only broke even. Nearly a third of the lawyers with Yellow Pages ads did not make any profit from them. So, was the cost of the advertisements reasonable to them? What about for lawyers who spent 90 cents to make a dollar, or 50 cents? Where does it become reasonable and how is it possible to determine reasonableness prospectively?

The problem is that the rule presumes a lawyer will know the rate of return and be able to avoid excessive costs, when a lawyer has no ability to predict this. On the other hand, the deal-of-the-day model enable the lawyer to know the rate of return going into the deal, which, as I understand it, is as high as a 50-50 split.

So, is it possible that Rule 7.2(b) actually says that it is permissible for a lawyer to buy ad space in a directory where the lawyer ultimately gets no return (or looses money), but it is impermissible for that lawyer to enter into a deal-of-the-day agreement where the lawyer gets half of the fees that are generated from the advertisement? That doesn't sound reaonable at all.

The fleet-footedness of deceptive marketing

Recently I was gathering material for a program and wanted to illustrate Google’s local search function. As I understand it, when someone searches for a service or product in a specific location, the matrix for the organic search gives priority to those with a Google profile and consumer reviews. So, if you search “Los Angeles divorce attorney,” the first page of the search includes a series of local law firms, with maps to their offices and links to their profiles and reviews.

The first thing I noticed when I did this is that Google doesn’t care what the content of the reviews say, only that there are reviews. A company, or law firm, can go to a competitor's profile and write a review that runs down the firm being “reviewed” or that does nothing more than blatantly use the review platform to praise their own firm or company.

Actually this was the second thing I noticed. The first thing I noticed was that the reviews were more often than not giving high praise and don’t really sound like real clients. I then drilled down, and this is what I thought was interesting. After searching “Los Angeles divorce attorney,” I clicked on one of the firms coming up under the local search feature. According to the review by “Lenny,” this firm did an excellent job and calmed his irate wife. Then I clicked on “Lenny” to see who else he reviewed. It turns out, he wrote 10 reviews over a six-week period in 2010. Seven of them were for law firms, six of which were divorce firms. In addition to that LA firm that did an excellent job, the firm is Toledo was a “real good experience;” the one in El Paso was “affordable;” the one in Greenville “helps you understand your options;” and the one in Philadelphia has a “high-quality reputation.” (Is this guy in the Grateful Dead -- "I've got a wife in Reno, baby, and one in Cherokee?)

Same thing happened with “Donald” – 12 reviews, nine of which were for law firms in as many states.

So, if you are a lawyer interested in getting on the first page of an organic search when potential clients use Google to seek a lawyer in your town and field of practice, it seems you can hire a company to provide you with fake reviews to optimize that possibility.

On one level, this is such blatant fraud. On another, it is so subterranean that no one figures it out. What a great example of the fleet-footedness of deceptive marketing.

Free CLE - Sort of...

For the past 20 years I have been presenting CLE programs for bar associations and marketing organizations. These programs have centered on the ethics of client development in various forms, including the use of technology and new media. From time to time law firms have asked me to participate in their programming. I've been reluctant to do this since it is outside of the scope of my day job and compensation for this type of service is complicated. So, I've reconciled this by offering free CLE presentations to law firms in exchange for their pledge to donate to a pro bono project. Not really "free." I get that, but it is a win-win. Let me know if your firm is interested. It's a standing offer.

I'm Back!

For years now I have treated this blog like the child who really really wanted a Christmas present, only to finally get it, play with it a few times and put it on a closet shelf. I came to the conclusion that I was a tweeter and not a blogger. But now I'm starting to get that they go hand in hand. I need a blog to expand on ideas - so I'm back. I hope you find what I have to say of some interest.

And thanks to Kevin and his team at LexBlog for their patience and direction as I make this reentry.

Will

New Jersey Disclaimer Could be BIG

The New Jersey Supreme Court's Committee on Attorney Advertising has issued the latest in a string of ethics opinions imposing limitations on the use of the Internet for client development. Opinion 36, issued January 2, 2006, states that lawyers who pays a flat fee for an online listing and receives an exclusive listing for a county for a particular field of practice "must ensure that the listing or advertisement contains a prominently and unmistakably displayed disclaimer, in a presentation at least equal to the largest and most prominent font and type on the site, declaring that "all attorney listings are a paid attorney advertisement, and do not in any way constitute a referral or endorsement by an approved or authorized lawyer referral service."

Usually ethics opinions are presented as sources of direction that fall short of legal authority. But this opinion states that a lawyer "must" ensure that the advertiser provide this specific disclaimer. Some might conclude that this should be the role of the court itself and, if important enough, the court should change its rule to provide such a requirement.

The Strong Arm Gets Muscled

The Colorado Supreme Court has rules that the Colorado Consumer Protection Act applies to lawyers and held that a law firm client who believes he was strong-armed into a low-ball settlement can sue under the law and seek triple damages from his lawyer. According to an AP article, the lawyer believes the suit is frivolous.

States have come down on different sides of the fence on the applicability of consumer protection acts against lawyers. Some courts conclude that if the law does not specifically state that lawyers are covered, they are not, since lawyers are regulated by the courts and not the legislature under the separation of powers doctrine. Other courts have concluded that lawyers are subject to such statutes in addition to the regulation of the courts. Some of these cases are discussed in "Spamming for Legal Services: A Constitutional Right within a Regulatory Quagmire" 22 John Marshall Journal of Computer & Information Law, 97 (2003).

Marketing is always ahead of regulation - Always

According to an article in the Guardian, a UK group called Nationwide Accident Services, which specializes in personal injury actions, has developed a word-search puzzle for children. The game involves circling words in a box of jumbled letters. The puzzles have been placed in hospitals and doctors' offices so that kids have something to do while waiting for their appointments. Here's the good part - The words include phrases such as "claim today," "compensation" and "no win, no fee." What's next? Maybe fortune cookie messages.

MADD is Mad at DUI Defense Advertising

According to the CBC, a Canadian chapter of Mothers Against Drunk Drivers is disturbed by the advertising of the Impaired Driving Office on behalf of criminal defense lawyers interested in impaired-driving cases. The ads appear on city buses in various Canadian provinces, but have been taken off of the buses in at least one city as a result of the complaints lead by MADD. The issue represents competing policies. Does the advertising give a green light to those who might drink and drive, or does it help people obtain legal counsel when they've been charged?